Volume 27 — Wyoming Reports

E. C. Raymond, Judge. . Action by Dora B. Caswell against John A. Ross to recover upon a lost note. There was a judgment for defendant and plaintiff brings error. It was clearly established that the note in question had been introduced in evidence upon the trial of a former case between the same parties. It was delivered to the reporter and lost; the making of the note was not denied in the former trial; its loss was not the fault of plaintiff in error.

' Chas. E. Winter, Judge. Action by John F. Mahan against the Wyopa Company and E. E. Billow as receiver thereof. Upon a judgment rendered in the state of New York in favor of William It. Edison and against Wyopa Company and thereafter assigned to plaintiff. The New York judgment is entitled to full faith and credit. (4410 C. S. 1920 does not apply to judgments of sister states. See. 1 Art. IV, U. S. Const.) The foreign court was one of competent jurisdiction.

Bell. Judgment in part for defendant, and plaintiff brings error. Pleard on Motions to Strike the Bill of Exceptions and to return the Bill to the District Court for Correction and Amendment, No briefs on motions.

Chas. E. WinteR, Judge. Action by C. M. Wallace against the Chicago, Burlington and Quincy Railroad Company for the possession of certain land alleged to have been taken by defendant for use in the construction of its railroad.

Action by Roy Boatman against James H. Miles. There was a judgment for plaintiff and defendant appeals. Heard on plaintiff’s motion to dismiss appeal, and on defendant’s motion for leave to amend the record on appeal. Argued orally. No briefs.

Court, Natrona County; Hon. C. E. WinteR, Judge. John Jones was convicted of grand larceny and sentenced to a term in the penitentiary. From this judgment and sentence defendant appeals. The facts are stated in the opinion.

Original proceedings in mandamus on the relation of E. L. Pitch against the State Board of School Land Commissioners of the State of Wyoming, and another to require the issuance., of a certificate of purchase for state school lands.

V. J. Tidbauj, Judge. Proceedings by Steven Faulkner against Chas. Faulkner, William Faulkner, Albert Faulkner and Sarah N. Faulkner Goodwin to contest a will in the matter of the estate of Sarah A. Faulkner, deceased. Heard on motion to dismiss the appeal. Proceedings on direct appeal being statutory must be strictly complied with to confer jurisdiction.

John R. ARNOLD, Judge. ’Action by Laura A. Hanks against Walter Hanks, Sr., for divorce. There was a judgment for plaintiff and defendant appeals.

John R. Arnold, Judge. Action by M. Mitter against the Black Diamond Coal Co. Judgment for plaintiff and defendant appeals and brings error. Heard on motions to dismiss the appeal and error proceedings. The cause' was heard further on a petition for a rehearing.

Matson, Judge. Proceedings for tbe adjudication of priority of the right to the use of the water of the Big Laramie River and its tributaries, which were instituted as provided by the statute by the filing with the State Board of Control claims of right by individuals and such contests by others against such individual claims as were filed under the statutory provisions.

James H. Burgess, Judge. Action by John B. Kendrick against Patrick Healy, Jr., and Alexander Healy, co-partners doing business under the firm name of Healy Brothers, to recover damages alleged to have been caused by trespassing sheep. Judgment for plaintiff and defendant appeals. The case was presented, by plaintiff in the trial court upon the theory that defendants were bailees of the hay in question.

James H. BuRGEss, Judge. Action by Lydia H. Elmore against Claude K. Cook for the recovery of possession to land. There was a decree for plaintiff and defendant brings error.' The facts are stated in the opinion.

EeroR to the District Court, Sweetwater County; Hon. John R. Arnold, Judge. Action in replevin by the Stahley Land and Livestock Co. against Mrs. Frank Beekstead and others.

Wn> LiAM C. MAntzeR, Judge. Action by John L. Hoagland against Mary Hoagland, for divorce. It appearing that defendant had remarried in another state within one year after securing a divorce in this state, the petition for divorce was denied, and plaintiff brings error.

Exceptions from District Court, Natrona County, CHARLES E. WinteR, Judge. T. A. Hall was informed against for violation of statutes as to dipping of sheep. Demurrer to the information was sustained and defendant discharged. The prosecuting attorney brings the case to the Supreme Court on exceptions to rulings in the case. Questions answered.

Errok to the District Court of Sweetwater County; Honorable Volney J. Tidball, Judge. This was an action on account by Bissinger & Co., a corporation against Max Weiss and others. There was a judgment for plaintiff for a less amount than demanded, and plaintiff brings error. The material facts are stated in the opinion.

Mentzer, Judge. Heard on petition for rehearing and motion for leave to amend an unsigned petition in error. The subscription of the brief of plaintiff in error is not jurisdictional and the attempted commencement of the proceedings in error was effectual because it was accompanied by service of process within sixty days. (Section 4305 Comp. Stats. 1910; Section 4306 Wyo. Comp. Stats. 1910; Section 4422, Wyo. Comp. Stats. 1910; Section 5111 Comp. Stats. 1910; Cin.

Eenest C. Raymond, Judge. On re-hearing of motion to dismiss. It does not appear that a record on appeal was ordered prepared or filed; specifications of error were not served upon counsel for respondent; this court is without jurisdiction, Culbertson v. Ainsworth, (Wyo.) 181 Pac. 418. The omissions cannot be cured by affidavit, Hahn v. Bank, 25 Wyo. 467; 172 Pae. 705 • There was not a substantial compliance with the statute.

Winter, Judge. Both actions were by Stella W. Chatterton, one against Paul F. Bonelli and the other against Paul F. Bonelli and wife. There were judgments for defendants in both actions and plaintiff brings error. The cause was heard on a motion to strike the bill of exceptions and dismiss proceedings in error. No application was made for an extension of time for presentation of a bill of exceptions within the 60 day period.

William C. MeNtzbr, Judge. Lee Gardner was convicted of larceny and brings error. The material facts are set forth in the opinion. There was not sufficient evidence to justify conviction; the court erred in refusing the one instruction requested by defendant.

The mortgage and deed executed to Lambe merely-passed Sprachlen’s equity of Redemption and did not effect Mrs. Bolin’s mortgage. Mrs. Bolin foreclosed her ed to redeem, under either the first or second mortgage, mortgage subject to Lambe’s first mortgage, but Lambe fail-She therefore had a right to possession. Nobody is entitled to possession under Lambe’s first mortgage since it was outlawed.

Raymond, Judge. Prank E. Anderson was convicted of obtaining property by false pretenses and brings error. The facts are stated in the opinion. The information did not state an offense; alleged false pretenses are insufficiently charged. The check in question was not fully described. There was no allegation that G. S. Williams was defrauded.

John R. Arnold, Judge. Prank James was convicted of murder in the first degree, and he brings error. The material facts are stated in the opinion. Defendant was convicted of murder in the first degree and sentenced to suffer death; he was deprived of his constitutional rights to a fair and impartial trial and the cause should be reversed. (Parker v. State, 24 Wyo. 500.) This rule was held to apply even though exceptions were not taken to all errors committed at the trial.

John B. Arnold, Judge. This was an action by John F. Fitzpatrick against Frank P. Bogan and another. From an order denying a motion for the appointment of a receiver pendente lite, plaintiff brings error.

William C. Mentzer, Judge. Action by Charles F. Coffee against Silas Harris and others. There was a judgment for plaintiffs and defendants appeal. Cause- heard on motion to dismiss the appeal. The transcript of judgment does not show the date of its entry so that it is impossible to say when it was entered.

Chas. E. Winter, Judge. Forcible entry and detainer proceedings by Robert J. Veitch against Henry L. White and others, begun in the Justice Court and appealed to the District Court. Judgment was for plaintiffs and defendant brings error. The complaint was fatally defective in that it did not comply with the requirements of the statute. (5353 Comp. Stats. 1910.) The justice was without jurisdiction, (Low-man v. West, 36 Pac. 258 (Wash.) .

Chas. E. WinteR, Judge. Beplevin action by Bessie M. Quinlan against Edith. A. Jones and another. There was a judgment for defendants, and plaintiff appeals. The right of possession being found by the court to be-in defendants the only judgment that could be rendered would be for the full value of the property, that being the proper measure of damages.

William C. MeNtzer, Judge. Action by James H. Hoge against Ora Haley for the recovery of $22,750.50 claimed as one-half the profits of a joint adventure in the purchase and resale of ranch property. There was a verdict and judgment for plaintiff and plaintiff brings error and defendant cross error. Pending proceedings in error Haley died and Robert L. George, his administrator, was substituted by stipulation as defendant in error.

P. W. Metz, Judge. Action by J. D. Thatcher and others against D. L. Darr to recover damages for the breach of a contract providing for the repurchase of corporate stock by defendant. A demurrer filed to the amended petition was sustained by the trial court and plaintiff electing to stand upon their amended petition, a judgment was rendered dismissing the action. Plaintiffs bring error.

Ralph Kimball, Judge. Action by Roy Boatman against James H. Miles for the recovery of damages for personal injuries inflicted by a vicious stallion owned by defendant, which occurred while the plaintiff was in the employ-of the defendant, and working with the animal in question as a part of his general duties. The material facts are stated in the opinion. From a judgment for plaintiff, defendant appeals.

<p>Appeal and Error — Rehearing—Filing oe Appeal Within Time Jurisdictional — Extension oe Time eor Filing Appeal Record.</p> <p>1. That the ease was heard by only two of the three members of the court is not ground for rehearing.</p> <p>2.v Filing record in the time, after entry of judgment appealed from, prescribed by Comp. St. 1920, See. 6404, is jurisdictional; the statute being mandatory and not directory merely.</p> <p>3. Right to file record cannot be given after the time therefor has expired; Comp. St. 1920, Section 6404, merely giving right to extend time, which can only be done before the time has expired; and this though motion supported by affidavit for extension had been filed in time, at least where there is no showing of attempt to seasonably present tho , matter to the court or judge.</p>

V. J. Tidball, Judge. The court erred in receiving evidence as to the communication of notice to defendant of the infected condition of the pens, the point not being put in issue by the petition; instructions given the jury as to the measure of damages and as to the recovery of interest upon an unliquidated claim, were erroneous and the trial court erroneously instructed the jury as to the duty of defendant to give warning of the infection of the yards a point not in issue.

Ralph Kimball, Judge. Heard on Motion to Dismiss The motion filed by plaintiff in error for a new trial was filed out of time and was ordered stricken by the trial court for that reason. The statute requires such motions to be filed within ten days after the report, verdict or decision is rendered except for a cause of newly discovered evidence. (Sec. 5872,'Wyo. Comp. Stats. 1920.) This requirement is. mandatory.